Commercial Speech: Set It Free

Article excerpt

Alternating liberal and libertarian views on public policy

Corporations increasingly find themselves embroiled in worldwide controversies. Simply to sell their wares, companies now must prove their products are eco-friendly, low-calorie and sweatshop-free, but corporate America usually fights these battles handicapped. The First Amendment states that "Congress shall make no law...abridging the freedom of speech." The judiciary, however, has fashioned a gray area for "commercial speech." Corporate expression is an oft-neglected stepchild compared with its beloved siblings: political and artistic speech.

This tradition began with the Supreme Court case of Valentine v. Chrestensen. In this 1942 decision, a businessman offered public tours of a submarine moored in New York's East River. He skirted a state ban on commercial handbills by printing a one-page manifesto on local docking laws. On the back side, he ran an ad inviting people to visit his sub. The Court held that the Constitution would prohibit a ban on all handbills, but put "no such restraint on government as respects purely commercial advertising."

From there the Court set sail. It has tacked back and forth, allowing commercial speech here while trimming it there. In some cases, it has imposed an elaborate, four-part "intermediate scrutiny test" to determine whether commercial-speech regulations are substantial, necessary and extensiveall subjective factors.

Last November, at least two dozen corporations including ABC, Hearst and Newsweek asked the Supreme Court to hear a case that could clear much of the fog related to the secondclass treatment of commercial speech.

These firms oppose a California Supreme Court decision that empowered San Francisco activist Marc Kasky to sue Nike over what he calls falsehoods in its press releases, newspaper stories and other communications defending its allegedly harsh foreign labor practices. Kasky never claimed he was injured by Nike's words, a usual requirement in First Amendment cases. Nonetheless, the California high court would require Nike to surrender profits tied to statements found to be false.

In an amicus brief, Exxon Mobil, Bank of America, Microsoft, Monsanto and Pfizer warn that "the effect of these California statutes on First Amendment freedoms is both immediate and grave, threatening all corporate speakers with civil and criminal liabilities for engaging in protected speech. …